Forget about Kendrick Lamar and Sabrina Carpenter — the hottest track of the summer is the secret (thus far) tape of Justice Department special counsel Robert Hur’s interview of President Joe Biden. Everyone, it seems, is clamoring to hear it: major media outlets, essentially every Republican official on the planet, and plenty of moderates and other interested political observers. Democrats who continue to call on Biden to drop out of the race (with increasing intensity over the past few days) could gather vital support for their cause from the tape’s release. I’m dying to hear the elusive recording myself.
But Attorney General Merrick Garland has refused to make the tape public — and he’s absolutely right to take this unpopular stand. To paraphrase the Rolling Stones, as performed by the Justice Department: You can’t always get what you want, and we don’t give a damn what you need. (Not quite as lyrical as the original.)
A quick refresher. Back in February, Hur released an explosive report detailing his yearlong investigation of Biden’s possession of classified documents. The special counsel concluded that Biden had classified materials in his private home and office after he left the vice-presidency, and he knew it — but the evidence didn’t quite necessitate or justify a criminal prosecution. Memorably, Hur opined that “at trial, Mr. Biden would likely present himself to a jury, as he did during our interview of him, as a sympathetic, well-meaning, elderly man with a poor memory.”
Naturally, Hur’s October 2023 interview of Biden became an object of obsession among Republicans bent on showing that Biden has lost a step, or five. The recent frenzy around Biden’s mental acuity, sparked by his debate debacle, has exacerbated demand for the Justice Department to disclose the tape. If he does sound like an “elderly man with a poor memory,” audio of the interview would become accelerant on an already-raging political fire. Republican House Speaker Mike Johnson offered no pretext about his motivation: “We all know why they don’t want to turn over the audio: because it will … show exactly what we all saw on the debate stage a couple weeks ago. That is something they want to cover up.”
Indeed, within days of the report’s issuance, two Republican-led House committees subpoenaed the Justice Department for audio of the Biden interview. But Garland refused, citing executive privilege — the right outcome, but for a bizarre and incorrect legal reason. Executive privilege has nothing to do with this situation. The privilege covers communications between a president and his advisers, to enable public officials to deliberate candidly and confidentially. If a president and his secretary of State discuss a diplomatic issue, for example, that’s subject to executive privilege. But a president, as the subject of a criminal investigation, answering questions from a prosecutor? There’s nothing privileged, executive or otherwise, about that.
Garland gave a better and more compelling reason for his refusal during congressional testimony: “There have been a series of unprecedented and frankly unfounded attacks on the Justice Department. This request, this effort to use contempt as a method of obtaining our sensitive law enforcement files, is just most recent.” This was a shockingly combative response from the chronically banal Garland. Essentially, he told House Republicans to go kick rocks.
Indeed, the Justice Department historically has refused to disclose to Congress or other outsiders nonpublic information from its criminal investigations. Imagine the precedent if prosecutors complied with the congressional subpoena here. What’s to stop any interested outsider from sifting through the Justice Department’s files to mine for dirt against a political opponent, including in cases that never resulted in criminal charges? Wouldn’t subjects and witnesses hesitate to speak candidly if they knew their voices could someday be broadcast to the world? More broadly, for the Justice Department to turn the tapes over would compromise its investigative function and undermine the rights of the subject — especially an uncharged subject, like Biden. Prosecutors need to do some things outside of public view to protect the case and the participants.
Nonetheless, in March 2024, the Justice Department agreed to an unusual half-measure: release of a verbatim transcript of the Hur-Biden interview, which provided valuable perspective. On one hand, the transcript doesn’t exactly read as if Biden has lost his mind; some of his answers are rambling or non-responsive, but the written words don’t convey that he’s incapacitated or incompetent in the legal sense. But the transcript also exposed astonishing dishonesty by the president. After release of the report, Biden ranted indignantly that Hur had asked about the death of Biden’s son, Beau: “How in the hell dare he raise that?” Biden bellowed. Turns out, Biden himself, not Hur, brought up Beau’s death, to place a certain event in temporal context.
So the transcript has its worth. But take it from an old-time prosecutor: If you’re trying to make an impact on a jury — or any audience — there’s no substitute for the audio. It’s far more visceral and memorable to hear words spoken aloud than to read them cold on a page, particularly where the acuity of the interviewee is at issue. Republicans in Congress plainly understand this truth, and the transcript only stoked their appetite to get the Hur-Biden audio. Garland drew a line: You’ll get the transcript, but not the tape.
You’ll be shocked to learn that House Republicans did not graciously accept the attorney general’s compromise position. Instead, they held Garland in contempt — teeing up the case for potential criminal prosecution by … the United States Justice Department. It took all of two days for the Justice Department to formally decline to indict its own agency head for acting on the agency’s own formal legal position. (I wonder what that internal deliberation sounded like; I imagine peals of laughter coming from DOJ headquarters.)
Quick historical note: Somehow, we managed to go our first 220-plus years as a nation without Congress holding any attorney general in contempt. But in 2012, the Republican-controlled House (with some Democratic support) held Attorney General Eric Holder in contempt for refusing to provide documents relating to the “Fast and Furious” firearms sting-operation scandal. Then in 2019, the Democratic-controlled House held Attorney General Bill Barr in contempt after he declined to provide documents relating to the administration’s effort to add a citizenship question to the census. Neither Holder nor Barr was prosecuted, of course; as discussed above, the Justice Department typically doesn’t rush to indict its own top prosecutor. Now Garland joins their ranks, and we’ve got a three-administration attorney-general contempt streak intact.
Congressional Republicans eventually tried to go medieval on Garland, raising a variation of an obscure, century-plus-old practice whereby Congress would use its “inherent” enforcement power to send out a sergeant-at-arms to arrest and lock up contempt-ees in a mysterious jail facility located somewhere in or near the Capitol. Present-day congressional Republicans weren’t so unrealistic to try to actually imprison the sitting attorney general in some abandoned cloakroom. Instead, they tried to fine him $10,000 per day. Predictably, that creative effort failed. And now, as a last resort, House Republicans have sued Garland in federal court for the tape. I don’t love their chances, though it’s not inconceivable they succeed.
Heaven knows it’s easy to criticize Garland, and I’ve done plenty of that throughout his tenure. As a current member of the media (and of the voting public), I’d like to cast scorn on Garland for his decision to withhold the Hur-Biden audio recording. But as a former prosecutor, I applaud him. We probably won’t ever hear the tape. And that’s for the best.
This article also appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
